A window into the impact of Ivey?

1 December 2017

On 20 November 2017, the Administrative Court handed down judgment in the first appeal concerning professional conduct since the landmark case of Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club) [2017] UKSC 67. This case considers the test of ‘dishonesty’ in the regulatory sphere.

Background

Dr Krishnan (‘the Respondent’) was charged with two distinct particulars of misconduct. The first of these is no longer of relevance. The second concerned an allegation that the Respondent had worked as a locum GP whilst on sick leave from his substantive post. It was also alleged that the Respondent’s conduct in this regard was dishonest.

When considering the allegation of dishonesty, the Legal Assessor advised the Panel of the Medical Practitioners Tribunal Service (MPT) to apply the authority in criminal proceedings, the test from R v Ghosh [1982] QB 1053. This advice was accepted by the MPT.

The test required the MPT to consider first (the objective limb) whether according to the ordinary standards of reasonable and honest people the Respondent’s conduct was dishonest, and second (the subjective limb) whether the Respondent himself would have realised that what he was doing was by those standards dishonest. In applying this test, the MPT found the objective limb met but found that the subjective limb had not been satisfied.

The MPT found the Respondent’s conduct not to be dishonest, but nonetheless the Respondent’s actions were found to constitute misconduct and a warning was imposed. No finding of impairment was made.

The Appeal

The GMC appealed (i) against the finding that the Respondent was not dishonest and (ii) that the Respondent’s fitness to practise was not impaired, under the powers conferred to it by section 40A of the Medical Act 1983. The Respondent cross-appealed (treated as an application for Judicial Review as the MPT had only imposed a warning) against the finding that the objective limb of the Ghosh dishonesty test had been fulfilled.

The appeal was heard by Judge Sycamore in the High Court (‘the Court’). He heard submissions on the basis of the above grounds on 17 October 2017, and judgment was reserved. A few days later, the Supreme Court handed down judgment in Ivey. Both parties were then invited to send further written submissions to the Court. In their submissions, both sides agreed that Ivey now applied to the proceedings, and as such, was the correct test for dishonesty.

In his judgment, Judge Sycamore reiterated the comments of Lord Hughes in Ivey that the ‘test in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given’. Instead, ‘when dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts….When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.’ He also reiterated that the objective tests in Ghosh and Ivey are different.

The Court determined that the advice given by the Legal Assessor and the reliance on this by the MPT was wrong. As such, the finding of the MPT could not stand.

The Court then followed the approach in GDC v Endicott [2014] EWHC 2280 (Admin) that ‘the court should be slow to substitute its own findings of dishonesty for those of a specialist tribunal which had heard all the evidence.’ As such, the case was remitted back to the MPT for determination of the issue of dishonesty, together with impairment and sanction.

Commentary

There is no suggestion that the advice of the Legal Assessor was wrong at the time it was given. The Ghosh test had commonly been relied on in professional discipline cases, despite these technically being classed as civil proceedings. Whilst the comments of Lord Hughes in Ivey are obiter, they are a clear and persuasive indication that Ghosh is no longer considered to be the appropriate test for dishonesty in professional discipline cases.